Crimes Act, 1900BGX v Children's Guardian [2014] NSWCATAD 173
Judgment (8 paragraphs)
[1]
The applicant's present age
CLB is now 24 years of age.
[2]
The seriousness of the applicant's total criminal record and the conduct of the applicant since the offences occurred
The disqualifying offence in October 2011 is a serious crime. Some other relevant matters are conduct that is not part of his criminal record.
His conduct of going with E to the show in April 2012 was a breach of conditions of his bail granted only 2 weeks before in respect of a serious charge.
His offence of the sexual assault on E in April 2012 constituted digital penetration of her vagina. Section 61H (1) of the Crimes Act 1900 defines "Sexual intercourse" for purpose of that Division as including such conduct. Subsection 66C(3) is in the same Division. It provides "Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable for imprisonment for 10 Years. Under subsection 66C(5) the circumstances of aggravation are set out whereby the maximum penalty is under subsection 66C(4) is increased to 12 years. imprisonment. They include where the offender is in the company of another person or persons (para 66C(5)(c)), and where the offender took advantage of the victim being under the influence of alcohol (para 666C(5)(g)). It was a premeditated serious offence, particularly in the context of the disqualifying offence less than 6 months previously.
Driving in June 2014 at a speed 45 klms per hour faster than the speed limit is a serious driving offence and in this case a 2 year suspension of his licence resulted under the legislation. It was also antisocial conduct and showed a gross lack of concern for public safety.
Driving in July 2014 while his licence was suspended and so soon after the suspension was serious criminal and antisocial conduct. It demonstrated a serious disrespect for the law and its purpose in terms of public safety. It should not be described as merely "a driving offence".
His dishonesty is consistent with his disrespect for the law and legal requirements.
There is other conduct and attitudes described in these reasons, including dishonesty, that has also weighed against him on the issue of what risk, if any, he poses to the safety of children.
His criminal record and conduct under this item supports the argument that he does pose a risk to the safety of children.
[3]
The likelihood of any repetition by the applicant of the offences or conduct, and the impact on children of any such repetition
The impact on a child of sexual abuse by an adult can be serious and longstanding. It can be traumatic. It can contribute to, or aggravate, sexual promiscuity and can cause serious emotional problems including difficulty forming trusting and intimate relationships.
Some of the possible consequences of CLB's conduct for children have already been described in these reasons.
The evidence suggests that CLB at 19 had (and may still have) some serious problem in that as a young adult, his associates were children (both boys and girls) and that he displayed a sexual interest in girls under 16.
There are numerous instances where CLB has been dishonest. His conduct and criminal record show a serious disrespect for the laws and legal requirements.
Dr Smith, a forensic psychologist, was engaged by [CLB] to prepare a Risk Assessment in relation to the possibility of future such conduct towards children. She prepared an 8 page report dated 1 August 2016. She completed a personality assessment inventory of [CLB]. She found that the results revealed "that he may not have answered in a completely forthright manner. His positive impression management scales (the tendency to repress undesirable characteristics) were outside of the normal range, and thus this instrument was interpreted with caution. It is not unusual for someone in [CLB]'s situation to respond to psychometric instruments in a manner that tends to portray themselves relatively free of shortcomings which most individuals will admit. There was also some level of defensiveness noted throughout his responding".
The profile revealed "no indications of the presence of clinical psychopathology" but she said "this may have been influenced somewhat by his positive impression management".
She used the Static-99R instrument for assessment of risk. She found that based purely on that score he would be held within the "low-moderate risk category relative to other male sexual offenders ".
She then used the Stable-2007 and Acute-2007 tools assessing changeable dynamic risk factors which she described as "personal skill deficits, predilections, and learned behaviours that correlate with sexual recidivism but can be changed through a process of effortful intervention".
In both these areas she found that his scores fell into the low priority categories of sexual reoffending.
In her summary, Dr Smith said that she accepted [CLB]'s statement that he believed B to be 17 years of age. The Tribunal has found that statement was not true and that he knew that B was 14.
She found that because of other dynamic factors, including "no prior or post (index) history of sexual offending", the risk was lower. She also said that matters that might have increased CLB's risk included "demonstrative maladaptive skills for coping with stressors, particularly with reactive depression, and impulsivity during periods of heightened emotion; a tendency towards positive impression management (as evidenced by his PAI profile)".
There are several factors in which the Tribunal finds lead to a conclusion that contrary to Dr Smith's opinion in her report that he is "low risk", CLB's risk of reoffending is not less than "low-moderate", and they are:
1. CLB's dishonesty and poor credibility;
2. The Tribunal has made findings as to extensive dishonesty of CLB since the disqualifying offence and statements minimising his bad conduct and demonstrating a lack of insight into the seriousness of his conduct and the possible consequences (or risks) for victims. He has falsely denied critical elements of criminal behaviour such as not knowing B's age. These appear to not be matters adequately recognised by Dr Smith in her report as denials and minimisations of his bad conduct.
3. Consistent with his lack of insight, CLB has not demonstrated empathy for B or E in relation to his conduct towards them.
4. There is evidence of Dr Smith that CLB has "demonstrative maladaptive skills for coping with stressors, particularly with reactive depression, and impulsivity during periods of heightened emotion". He blamed the sexual offences and driving offences on impulsivity, stress or reactions to bad events such as losing his job.
5. His failure to disclose to Dr Smith the allegations of a sexual assault of E in April 2012, and breach of his bail conditions set in relation to the disqualifying offence. The tribunal's finding is that the allegations are true. Dr Smith in cross examination said that if she had been informed of the allegations she would have given a less favourable assessment;
6. Failure of CLB to provide Dr Smith with most of the written material relied upon in the proceedings of the Children's Guardian;
7. Dr Smith said that she accepted CLB's statement that he believed B to be 17 years of age. The Tribunal found he knew she was 14.
8. Dr Smith accepted CLB's claim that he has been in a secure, stable romantic relationship of 6 Months. That claim is not corroborated. Nor did CLB rely upon any statement or other evidence of his partner or any other person on that claim. In the context of CLB's poor credibility, the evidence of previous bad behaviour by CLB and his lack of empathy for others and insight into the effects on others of his conduct, the tribunal could not find the relationship demonstrated a capacity for stable long term relationships on his uncorroborated evidence of a single romantic relationship of 6 months that had only just developed to cohabitation, and with a baby aged 1 from the woman's prior relationship, ongoing conflict with the abusive father and an apprehended violence order restricting his conduct for the protection of the woman.
9. One of the factors Dr Smith considered in relation to the Static 99 assessment in the actuarial factors is the person had stranger victims. It appears from her report that this was not a factor on which Dr Smith scored CLB, but on the evidence before the Tribunal both victims B and E were strangers to CLB. It appears that if correctly scored on this item alone CLB would have been scored higher overall and possibly at "Moderate" risk instead of "Low - Moderate".
10. The Tribunal is concerned that Dr Smith did not recognise the strength and diversity of CLB's positive impression management. The Tribunal acknowledges that CLB's financial circumstances may not have extended to Dr Smith consulting additional persons and this may have prevented phone calls or interviews to verify important, but uncorroborated, matters told to her by CLB.
11. The Tribunal is not satisfied that Dr Smith's assessment adequately investigated the extent of CLB's emotional identification with children, or his capacity for stable relationships. Although he told her he had been in a romantic relationship with a lady for 6 months, when Dr Smith interviewed him in July 2016 a month before her report, he told Dr Smith that he and the lady had "just moved in together". They had not previously cohabited.
12. Dr Smith did not take into account in assessing the risk, his more recent conduct of driving at a speed 45 klms per hour faster than the speed limit and driving while his licence was suspended. These matters compel a finding that the conduct was antisocial and criminal and seriously disregarded the safety of members of the public on the roads.
13. CLB did not respond to these matters in any documentation he provided to the tribunal. In cross examination he said that when he drove while disqualified he knew it was wrong, but he still did it because of "my emotional state. I had lost my employment and wanted to get out of the house. I was on my way to see friends".
14. That lawless conduct is recent and does require recognition that if he has the care of a child, there is a risk of similar conduct causing serious injury to the Child.
[4]
Any other information given by the applicant in or in relation to the application
Apart from the evidence of Dr Smith and himself, the only evidence offered by CLB in support of his application is a short work reference. At the date of the reference he had worked for the firm "on a casual ingoing assignment "for less than 7 months. The signatory of the reference does not disclose that he has any knowledge of the use for which the reference is needed, or any of the adverse matters raised against the Applicant in the evidence before the Tribunal. The reference does not provide any evidence directly relevant to the issue of whether the applicant, if working with, or caring for, persons 17 or younger, would pose a risk to their safety.
The half page statement of the Applicant did not comply with the onus placed on CLB by Sub-section 28(5) of the Act to "fully disclose to the Tribunal any matters relevant to the application".
[5]
Any other matters that the Children's Guardian considers necessary
There are no such other matters.
[6]
Conclusions
The Children's Guardian relies upon Sub-section 28(7) of the Act which provides that in these proceedings it is presumed, unless CLB proves the contrary, that the applicant poses a risk to the safety of children.
The Act defines children as persons under the age of 18 years.
The Tribunal is not satisfied that if CLB has the care of a child (which includes young persons 17 or younger, the risks of him committing a further sexual assault on a child for sex or child pornography, of physical injury to a child in his care from his use of a motor vehicle, and of psychological or emotional injury to children from his exploitation of a child or children for production, dissemination or possession child pornography are together a risk greater than "low". It is a real and appreciable risk. CLB has not overcome the presumption that he poses a risk to the safety of children in his care.
The application was therefore refused.
[7]
Privacy
For the protection of the privacy of CLB and any of the children referred to in these reasons, there should be an order prohibiting broadcast or publication of their names or other identifying information of any such person without the leave of the Tribunal.
[8]
Orders
The orders therefore were:
1. The application for enabling orders is refused and dismissed;
2. Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by his or her name, without the leave of the Tribunal, is prohibited.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 January 2017
Parties
Applicant/Plaintiff:
CLB
Respondent/Defendant:
Children's Guardian
Cases Cited (3)
Relevant Law
"Child Abuse Material" is defined in Section 91FB(1) of the Crimes Act 1900 for the purposes of that Division ( the same Division contains section 61H) as meaning material "that depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive:
1. A person who is, appears to be, or is implied to be a child as a victim of torture, cruelty or physical abuse; or
2. A person who is, appears to be, or is implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons); or
3. A person who is, appears to be, or is implied to be a child in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or
4. The private parts of a person who is, or appears to be, or is implied to be a child.
Section 4 of the Act provides that:
"The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
Section 6 of the Act provides that a person who is engaged in "child-related work" for purposes of the Act if the work involves direct contact by the worker with children. It also lists in ss6(3) a series of roles that are ""child- related roles" and in ss6(2) lists a series of areas of work which may be declared by the regulations to be child-related work.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act requires that a prospective adoptive parent and any adult resident of the home of the prospective adoptive parent, must apply to the Children's guardian for a Working With Children Check Clearance.
Section 12 provides that there are two classes of Working with Children Check Clearances which are:
1. Volunteer - authorising workers to engage in unpaid child-related work; and
2. Non-volunteer - authorising workers to engage in paid and unpaid child-related work.
Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". CLB was born in August 1992 and was an adult aged 19 years at the date of the offence in October 2011. In paragraph 1(1)(n) of Schedule 2 to the Act, an offence under s.91H of the Crimes Act, 1900, is included in the list of specified offences that are disqualifying offences. CLB is a disqualified person.
Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to CLB because of the offence in 2011. But some such disqualified persons are able to apply to the Tribunal for enabling orders which require the Children's Guardian to disregard the disqualifying offence(s) and issue a clearance.
Section 27 of the Act provides for administrative review by the Tribunal of a refusal to grant a Working With Children Check Clearance in certain circumstances. That does not apply in the present situation.
Section 28 of the Act provides:
1. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
2. The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
3. A disqualified person may make an application under this section only if:
1. the person has been refused a working with children check clearance, or
2. the person's clearance has been cancelled, because the person is a disqualified person.
1. The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.
2. An applicant must fully disclose to the Tribunal any matters relevant to the application.
3. If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.
4. In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
5. An enabling order may not be made subject to conditions.
Section 26 of the Act provides that certain persons who have been refused a clearance by the Children's Guardian are not entitled to apply for a review or an enabling order. They are listed in Sub-section 26(1) and include in 26(1)(a)(viii) a person who has been convicted of an offence against Section 91H of the Crimes Act, which was committed as an adult. However, there is a requirement s in Section 256(1)(a) that a person must also satisfy Sub-section 26(2) and that limits the group to persons who have, for the offence, received a sentence of full time custody, a detention order, intensive order, community service order, a good behaviour order, or one of various other orders. None of those provisions of Sub-section 26(2) apply to CLB, and therefore section 26 does not exclude him applying for enabling orders.
Section 30 of the Act includes the following provisions:
1. The Tribunal must consider the following in determining an application under this Part:
1. the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
2. the period of time since those offences or matters occurred and the conduct of the person since they occurred,
3. the age of the person at the time the offences or matters occurred,
4. the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
6. whether the person knew, or could reasonably have known, that the victim was a child,
7. the person's present age,
8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
10. any information given by the person in, or in relation to, the application,
11. any other matters that the Children's Guardian considers necessary.
(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
1. A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work; and
2. It is in the public interest to make the order.
1. On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to CLB pending the determination of the matter.
Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.
A literal interpretation of "a risk assessment … to determine whether CLB ….poses a risk to the safety of children", is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section:
"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'.
The Seriousness of the offence with respect to which the person is a disqualified person, or any matters that caused the refusal of a clearance
The nature of the disqualifying offence and surrounding circumstances are as follows.
On a day in October 2011 when CLB was 19 years of age, he was at his flat at night with 2 school boys, C and D, both aged 16 years. At about 12:30am, CLB telephoned B, a girl aged 14 years of age, who knew one of the boys and had briefly met CLB only once (about an hour before, he said).
B attended school with D. CLB invited B to join them. She agreed and left her home without the knowledge of her family and was collected nearby by CLB or one of the boys in CLB's motor vehicle.
CLB testified at the hearing that he went to collect her. In B's statement given to 2 officers of the Department of Family & Community Services on 14 October 2011 when she was interviewed in the company of her mother, she said "one of the boys came to collect me in a car". At the time neither boy was old enough to have a driver's licence.
When she arrived at CLB's flat, the group watched some movies. During the course of the evening, CLB had sexual intercourse with B in CLB's bedroom. While this was happening, D entered the bedroom several times and, using his mobile telephone, filmed CLB and B engaging in sexual intercourse.
Later CLB and B joined the others in the lounge room, and D showed them the recording on his mobile telephone. It is alleged he stated that he deleted the footage. CLB and D then suggested that they make a further video recording of CLB and B engaging in sexual intercourse again. B indicated she was reluctant to agree to that and felt pressured. However, she agreed to participate upon the condition that the recording would not be shown to anyone else.
CLB and B returned to the bedroom and engaged in sexual intercourse and oral sex and D was present in the room and appeared to record the activity on his mobile telephone. CLB also made a recording on his mobile telephone of sexual activity between him and B. B was driven back to near her home that morning.
The following day a number of people at B's school received footage on their mobile telephones of B engaging in sexual activity with CLB. B complained to a school teacher. FACS and the police were notified.
B declined to provide a statement to the detectives who interviewed her that night. She told them that she had told CLB that she was 14 before they had sexual intercourse. While she was talking with the police her mobile phone rang and police observed that she received a text message from CLB apologising for the "incident" and asking what was going to happen.
About 10:20 pm on the day after the incident the police attended the flat of CLB and he made admissions of having engaged in sexual intercourse with the victim. He was cautioned. He produced a mobile telephone from his pocket saying that the recording was still contained on it and provided it to the police to view. The police observed the recording, and it showed the accused engaged in vaginal / penile intercourse and oral intercourse with B. CLB produced to the police a mobile telephone, a laptop computer, a portable hard drive, and a USB memory stick, all of which contained footage of CLB engaged in sexual activity with B.
B informed the police that she had told CLB that she was 14 prior to them having sexual intercourse on the first occasion. The next day, B's mother went to CLB's flat about the issue, and he volunteered to show her part of the recording and made admissions that it depicted himself and B engaged in sexual intercourse.
The Joint Investigation Response Team from the Department of Community Services and the NSW Police Service interviewed B regarding the events leading to the prosecution of CLB. She declined to cooperate in any proposed prosecution of CLB for having sexual intercourse with her at the age of 14. She signed a document which included the following statements:
4. At this time I do not want Police to make any further enquiries or investigations in relation to this complaint. I do not wish for the matter reported to proceed further at this time. I am fully aware of the options available to me in relation to this matter.
5. I do not wish for Police to make an application for an apprehended violence order in relation to this matter.
6. I am satisfied with the actions taken to date by the officers attached to the Newcastle Joint Investigation Response Team. I have no complaints about the dealings that I have had with the Joint Investigation Response Team"
CLB declined to participate in an electronically recorded interview and was subsequently charged with produce, disseminate or possess child abuse material. The court found the offence was proved but without a conviction ordered CLB under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to enter a bond for a period of 2 years with conditions he be of good behaviour, appear before the court during that period if required, and comply with the Apprehended Violence Order.
CLB provided an undated half page typed statement in support of his application to this Tribunal. It does not dispute any of the allegations made by the police in the redacted Police FACTS provided to the court when the offence was found proved.
CLB in cross examination said that for him the events in relation to the sexual activity with B and the recording of that was "a life changing event". But he described his photographing of the activity as "a young mistake".
Section 91H of the Crimes Act 1900 provides that the maximum penalty for the offence that was found proved is imprisonment for 10 years.
Although it appears that CLB pleaded guilty to only possession of child abuse material, the evidence establishes on the balance of probabilities that CLB produced, disseminated and possessed child abuse material. His conduct involved the exploitation of a child for sex and to produce child pornography. The child was extremely vulnerable because of her age, immaturity, being outnumbered by CLB and two 16 year old boys, and her lack of adult parental protection, supervision or control.
As a result of his conduct pornographic film of B was distributed to students at the child's school. The consequences included the disrespect and disgust engendered amongst her peers and the wider community, the poor reputation it caused her in the community, and the relationship problems and damage to her relationships with fellow students, her teachers, other staff in the school, her friends, members of her family, and the wider community.
Another consequence is the damage to B and members of her family in terms of self respect, self confidence, self image and self esteem.
Another aspect of his conduct was the damaging example his exploitation of B provided to the two16 year old boys who were present and the wider audience of children who saw the recordings. There is also in previous decisions of the Tribunal a recognition of expert evidence that the viewers of "hands off" child abuse material leads to a market which encourages "hands on" child abusers (BGX v Children's Guardian [2014] NSWCATAD 173; CFJ v Children's Guardian [2016] NSWCATAD 62).
It was a very serious offence. There is no evidence by CLB demonstrating that he recognises the diverse consequences for others or has any serious empathy for those affected.